2018 (9) TMI 737 - AT - Central Excise

Tribunal recalls order citing errors in recording facts, inadequate opportunity for defense, and violation of natural justice

The Tribunal allowed the miscellaneous application seeking the recall and review of the order dated 23.04.2018 due to errors in recording facts, ... Recall and review of the Tribunal order no. A/10767-10769/2018 dated 23.04.2018 - rabble rousing - Principles of natural justice. Held that:- Under the Central Excise Act, the tribunal does not have any power to review its own order. However, in terms of section 35C sub section 2, the tribunal can entertain an application for rectification of mistake apparent from the record - The key is that tribunal can amend an order only “with a view to rectifying any mistake apparent from the record”. Thus, if there is no mistake apparent on record no amendment to order can be made. The facts recorded in order and as described by applicants are being examined in that perspective. It is apparent that in the instant case final decision pronounced in the court has not been altered. What has happened is that the reasoning which was given by dictation in brief in the courts, has been elaborated in the written order in so far as merits are concerned. We find that such changes are acceptable - we are not able to conclude that there is any error apparent on record as far recording of order on merit on 23/04/2018 in the court is concerned. It is not any dispute that the order in the court was pronounced by Hon'ble President, while order on 23.04.2018 was issued “Per” Member Technical. No authority has been brought before us that prescribes that the member who pronounced the order in the court is required to dictate or draft the order. In terms of Rule 26 where the gist of the decision is pronounced without the detailed order, the last paragraph shall specify the date on which the gist of decision was pronounced. In the instant case, the gist of the decision in the instant case was pronounced on 23.04.2018 and thus there is no error in the impugned order in that respect. Rule 26 also prescribes that date of final order shall be the date on which the members of the bench signed the order applied to the situation where the gist of decision is not pronounced in the court. The said clause does not apply to the instant case where the gist of decision was pronounced in the open court. There has been an error apparent on record as the order has been passed without granting any hearing to appellant's advocate and insufficient hearing to appellant - the Miscellaneous application is allowed and the order dated 23.04.2018 is recalled and the appeal is restored to its original number. Issues Involved:1. Recall and review of Tribunal order dated 23.04.2018.2. Allegation of incorrect recording of facts in the Tribunal's order.3. Adequate opportunity for the appellant's advocate to present the case.4. Discrepancy between the order dictated in open court and the final issued order.5. Conduct of the appellant's advocate and the subsequent boycott resolution.6. Principles of natural justice and the propriety of adverse remarks without opportunity for defense.Detailed Analysis:1. Recall and Review of Tribunal Order Dated 23.04.2018:The application seeks the recall and review of the Tribunal's order dated 23.04.2018, arguing that the order does not record the correct facts and creates a false record of proceedings. The Tribunal examined the application under the scope of Section 35C sub-section 2 of the Central Excise Act, which allows for rectification of mistakes apparent from the record.2. Allegation of Incorrect Recording of Facts in the Tribunal's Order:The appellant's counsel argued that the order dated 23.04.2018 does not record the facts correctly, particularly from paragraphs 16 to 22. The counsel claimed that the advocate only requested adequate opportunity to be heard and did not stage a walkout or threaten a boycott, contrary to what was recorded in the final order.3. Adequate Opportunity for the Appellant's Advocate to Present the Case:The appellant's counsel asserted that the advocate was not given sufficient time to present the case, and the Hon'ble President started dictating the order while the facts were still being explained. This led to a situation where the appellant did not get a full opportunity to defend the case, resulting in a failure to observe the principles of natural justice.4. Discrepancy Between the Order Dictated in Open Court and the Final Issued Order:The appellant's counsel pointed out that the order dictated in open court by the Hon'ble President was only 4 to 5 paragraphs long, whereas the final issued order was much longer and was dictated by Member Technical. The Tribunal found that while the final decision on the merits was not altered, the reasoning was elaborated in the written order, which is permissible under the law as per the decision of the Hon'ble Supreme Court in the case of Surendra Singh and Others.5. Conduct of the Appellant's Advocate and the Subsequent Boycott Resolution:The Tribunal examined the events of 23.04.2018, where the appellant's advocate was allegedly asked to leave the court, leading to a boycott resolution by the Ahmedabad CESTAT Bar Association. The Tribunal found that the affidavits submitted by other counsels supported the appellant's version of events. However, these affidavits were from individuals who were also aggrieved by the events, making it difficult to rely solely on their version.6. Principles of Natural Justice and the Propriety of Adverse Remarks Without Opportunity for Defense:The Tribunal agreed with the appellant's counsel that derogatory remarks should not be made unless absolutely necessary and that the advocate should have been given an opportunity to defend himself before such comments were recorded. The Tribunal found that recording observations without granting the counsel an opportunity to defend himself was an error apparent on record.Conclusion:The Tribunal concluded that there was an error apparent on record as the order was passed without granting adequate hearing to the appellant's advocate and without sufficient hearing for the appellant. Consequently, the miscellaneous application was allowed, the order dated 23.04.2018 was recalled, and the appeal was restored to its original number.